Supreme Court of California Justia
Docket No. S129110
Estate of Saueressig

Filed 6/22/06

IN THE SUPREME COURT OF CALIFORNIA

ESTATE OF TIMOTHY KIRK
SAUERESSIG, Deceased.
)
SCOTT SMITH,
Petitioner
and
Appellant,
S129110
v.
Ct.App. 2/4 B167907
SHIRLEY K. GOFF,
Los Angeles County
Objector and Respondent.
Super. Ct. No. BP076076

A will that meets statutory requirements is effective upon the testator’s death.
(Cook v. Cook (1941) 17 Cal.2d 639, 646 (Cook); Estate of Lopes (1984) 152
Cal.App.3d 302, 305 (Lopes).) Probate Code section 6110 requires a will be
signed by two witnesses.1 The question here is whether the signature of a witness
affixed after the testator’s death satisfies the statute. We conclude that such
postdeath subscription is not permitted, and reverse the contrary Court of Appeal
judgment.

1 All further undesignated statutory references are to the Probate Code.

1


I. FACTUAL AND PROCEDURAL BACKGROUND2
On December 26, 2000, Timothy Kirk Saueressig asked Joongok Shin, a
notary public, to notarize the execution of his will.3 Ms. Shin did so, and
Saueressig delivered copies to Scott Smith and Harry Ernst. Under the will, Smith
was named executor. He, Ernst, and Cliff Thomas were beneficiaries.
Saueressig died in August 2002. In October, Smith filed a petition to probate
the will, supported by a proof of subscribing witness, executed by Ms. Shin.
Smith argued that, although the will was typewritten, it qualified as a holographic
will. Smith based the claim on the fact that the typed will was found in an
envelope on which decedent had handwritten: “DEC. 26th, 2000” and
“TIMOTHY K SAUERESSIG'S LAST WILL AND TESTAMENT.”
The public administrator filed objections and exceptions to the petition,
asserting that the proposed will failed to comply with the statutory requirements.
He also filed a competing petition for letters of special administration. On
December 16, 2002, the trial court denied the petition for probate, finding that the
will did not qualify as holographic because its material terms were typed. Nor did
it qualify as a formal will because, having been signed by only one witness, it
failed to meet the two-signature requirement of section 6110. The court granted
the petition for letters of special administration.
A week later, Estate of Eugene (2002) 104 Cal.App.4th 907 (Eugene) was
filed. Eugene held that under its particular circumstances, the signature of a

2 Because there was no petition for rehearing in the Court of Appeal, we
take our statement of facts largely from that court’s opinion. (Cal. Rules of Court,
rule 28(c)(2); People v. Hernandez (2004) 33 Cal.4th 1040, 1045.)

3 As Smith conceded below, “the only reasonable inference to be drawn
from the decedent’s conduct is that he believed the notarization would validate his
will.”
2


witness subscribed after a testator’s death was valid under section 6110. (Eugene,
at p. 909.) Relying on Eugene, Smith filed an “alternative motion” for relief from
the order denying probate of Saueressig’s will.
Smith urged there was a second qualifying witness, Theodore Boody, who
was notary Shin’s husband. According to his March 25, 2003 declaration, Boody
heard decedent ask Shin to notarize the will, saw decedent sign the document, and
saw Shin notarize decedent’s signature. Boody understood that the document
signed and notarized was decedent’s will, and was “ready and willing to sign the
will as a witness to the signing of the will by [decedent] on December 26, 2000.”
Shirley K. Goff and the public administrator opposed Smith’s motion, which the
trial court denied.
The Court of Appeal reversed, concluding that the trial court abused its
discretion in denying relief to Smith and excluding the will from probate.
We granted Goff’s petition for review.
II. DISCUSSION
The right to dispose of property by will is entirely statutory. (Kizer v. Hanna
(1989) 48 Cal.3d 1, 10.) “The Legislature may withhold the right altogether, or
impose any conditions or limitations upon it which it chooses.” (Estate of
Burnison (1949) 33 Cal.2d 638, 640, affd. sub nom. United States v. Burnison
(1950) 339 U.S. 87, 95.)
Before 1985, a formal will required attestation by two witnesses in the
presence of the testator. (Former § 50, as amended by Stats. 1982, ch. 187, § 1,
p. 569, and repealed by Stats. 1983, ch. 842, § 18, p. 3024.) The required presence
of the testator foreclosed any argument that a witness’s signature affixed after the
testator’s death would satisfy the statute.
In 1982, in response to an Assembly resolution, the California Law Revision
Commission (Commission) submitted its Tentative Recommendation Relating to
3
Wills and Intestate Succession. (16 Cal. Law Revision Com. Rep. (1982) p. 2301;
see Stats. 1980, Res. ch. 37, p. 5086.) As relevant here, the Commission observed
that “[t]he formalities for execution of an attested will are to ensure that the
testator intended the instrument to be a will, to minimize the opportunity for
fraudulent alteration of the will or substitution of another instrument for it, and to
provide witnesses who can testify that the testator appeared to be of sound mind
and free from duress at the time the testator signed or acknowledged the will.
These purposes are served by the existing requirements that the will be in writing,
be signed by the testator, and be signed by two witnesses who understand that the
instrument is the testator’s will and who were present at the same time to witness
the testator’s signing of the will. The proposed law continues these requirements.”
(16 Cal. Law Revision Com. Rep., supra, p. 2320, fns. omitted.)
In 1983, effective January 1, 1985, the Legislature substantially revised the
Probate Code.4 As part of that revision, section 50 was repealed and replaced by
section 6110.5 (Stats. 1983, ch. 842, §§ 18, 55, pp. 3024, 3049.) Section 6110,

4 Assembly Bills Nos. 25 and 68 were “introduced to effectuate” the
Commission’s Tentative Recommendation. (Sen. Com. on Judiciary, Rep. on
Assembly Bills Nos. 25 & 68 (1983-1984 Reg. Sess.) (hereafter Senate Report) 3
Sen. J. (1983-1984 Reg. Sess.) p. 4867.)

5 Section 6110 provides:
“(a) Except as provided in this part, a will shall be in writing and satisfy
the requirements of this section.

“(b) The will shall be signed by one of the following:
“(1) By the testator.
“(2) In the testator’s name by some other person in the testator’s presence
and by the testator’s direction.

“(3) By a conservator pursuant to a court order to make a will under
Section 2580.

“(c) The will shall be witnessed by being signed by at least two persons
each of whom (1) being present at the same time, witnessed either the signing of

(footnote continued on next page)
4


subdivision (c) (section 6110(c)) provides a will “shall be witnessed by being
signed by at least two persons each of whom (1) being present at the same time,
witnessed either the signing of the will or the testator’s acknowledgment of the
signature or of the will and (2) understand that the instrument they sign is the
testator’s will.”
Section 6110 eliminated several technical requirements, including “that the
witnesses sign the will in the testator’s presence.” (Sen. Rep., 3 Sen. J., supra, p.
4872; 16 Cal. Law Revision Com. Rep., supra, at p. 2393.) Section 6110
continued “the requirements of former Section 50 that (1) the will be in writing,
(2) that the will be signed by the testator or by someone else who signs the
testator’s name in the testator’s presence and by the testator’s direction, (3) that
the will be signed or the testator acknowledge the signature in the presence of two
witnesses who are present at the same time, and (4) that the witnesses sign the
will.”6 (Sen. Rep., 3 Sen. J., supra, p. 4872; 16 Cal. Law Revision Com. Rep.,
supra, p. 2393.)

(footnote continued from previous page)

the will or the testator’s acknowledgment of the signature or of the will and
(2) understand that the instrument they sign is the testator’s will.”

Section 6110 was repealed in 1990 and reenacted that same year without
change. (Stats. 1990, ch. 79, §§ 13-14, pp. 463, 684.) It was amended in 1996 to
add a provision unrelated to the issue in this case regarding the signing of a will by
a conservator. (Stats. 1996, ch. 563, § 20, p. 3155.) Because the relevant terms of
section 6110 have not changed since its 1983 enactment, we refer to both former
and current section 6110 as section 6110.

6 On July 14, 1983, the Senate Committee on the Judiciary published a
report in the Senate Journal stating, “Except for the new and revised comments set
out below, the Law Revision Commission Comments to Assembly Bills 25 and 68
reflect the intent of the Senate Committee on Judiciary in approving Assembly
Bills 25 and 68. The new and revised Comments set out below also reflect the
intent of the committee in approving this bill.” (Sen. Rep., 3 Sen. J., supra, p.

(footnote continued on next page)
5


The issue here is the scope of the legislative intent in eliminating the
requirement that the witnesses sign the will in the testator’s presence. Plainly,
section 6110(c) contains no express temporal limitation on when the witnesses
must sign the will in order for the document to be valid.7 Thus, it is ambiguous as
to whether it permits postdeath attestation.
The Courts of Appeal have reached differing conclusions as to whether
section 6110(c) permits attestation after the testator’s demise. Thus, in Crook v.
Contreras (2002) 95 Cal.App.4th 1194, 1199, 1201, 1203 (Crook), the trial court
denied a probate petition, concluding in part that proffered codicils were invalid
because they lacked two signatures.
The Court of Appeal affirmed, observing that the question of whether valid
attestations could be made after the testator’s death “has never been addressed in

(footnote continued from previous page)

4867.) Included in the comments to section 6110 is the excerpt quoted above in
the text and on page 10 regarding the retained and deleted execution requirements.
(Sen. Rep., 3 Sen. J., supra, p. 4872.) This identical passage also appears in the
Commission’s tentative recommendation. (16 Cal. Law Revision Com. Rep.,
supra, p. 2393; see Jevne v. Superior Court (2005) 35 Cal.4th 935, 946-947.)

7 Likewise, the Uniform Probate Code, on which the Commission at times
relied in drafting its recommendations, contains no express language addressing
whether a witness may sign a will after the testator’s death. (Former U. Prob.
Code, § 2-502; 16 Cal. Law Revision Com. Rep., supra, p. 2319.) A comment to
Uniform Probate Code section 2-502 added in 1990 notes that there is “no
requirement that the witnesses sign before the testator’s death” and that the
attestation requirement, “in a given case,” could be “satisfied even if the witnesses
sign after the testator’s death.” (8 pt. 1 West’s U. Laws Ann. (1998) U. Prob.
Code, com. to § 2-502, p. 145.) The comment was of course not before the
Legislature when it enacted section 6110 several years earlier. Moreover, nothing
in the legislative history of the enactment, reenactment, or amendment of section
6110 refers to this comment or contains any similar language regarding postdeath
attestation.
6


California and has been repeatedly rejected by the courts in other jurisdictions.
We are unpersuaded that we should chart a new course. Our independent
construction of Probate Code section 6110, in light of its legislative history,
discloses no indication that the Legislature intended by its 1983 statutory revision
to permit postdeath subscription of a will. A conclusion otherwise would attribute
to the Legislature an intent to allow the validity of a will to depend upon the will
or caprice of one who had been requested to perform the very simple act of
becoming a witness by allowing such a person to wait until after the testator’s
death to decide whether or not to subscribe his or her signature to the will. Such
an interpretation would invite fraud and subvert the basic intent of will
authentication requirements. We conclude that the subscription of a will by two
witnesses must occur prior to the testator’s death, and a will that has not been
subscribed by two witnesses at the time of the testator’s death neither complies nor
substantially complies with Probate Code section 6110.” (Crook, supra, 95
Cal.App.4th at p. 1205, fn. omitted.)
Subsequently, in Eugene, supra, 104 Cal.App.4th 907, 909, two heirless
sisters prepared mutual wills. Each left her estate to the other, and upon the death
of the surviving sister, to charity. (Ibid.) The sisters’ attorney, who was also a
witness, inadvertently signed only the will of the first sister to die. (Ibid.) Upon
the second sister’s death, the attorney apparently sought to satisfy section 6110 by
executing a proof of subscribing witness, and providing a declaration that he had
prepared both wills and observed their execution. He “had believed he had signed
both wills at the time they were executed.” (Eugene, at p. 909.) The public
administrator objected to the petition for probate. The trial court denied the
petition because the attorney had not signed the will during the testator’s lifetime.
(Eugene, at p. 910.)
7
The Court of Appeal reversed. (Eugene, supra, 104 Cal.App.4th at p. 914.)
In directing that the will be probated, the Court of Appeal placed heavy reliance
on the fact that neither the “public administrator or anyone else” opposed the
charitable beneficiary’s appeal, and that “there is not the slightest hint of fraud or
any wrongdoing by anyone involved at the time the wills were executed or at any
time thereafter.” (Id. at pp. 910, fn. 1, 912, 914, fn. 5.) It distinguished the
authorities on which Crook, supra, 95 Cal.App.4th 1194 relied as all involving
actual disputes, either by will contest or by competing petitions for probate.
(Eugene, at p. 914, fn. 5.) The court emphasized that it was presented with no
such dispute, and disfavored escheat rather than the testator’s intended charitable
disposition. (Ibid.) Eugene therefore “disagree[d] with the absolute rule
articulated” in Crook, and concluded “instead that, at least on the facts of this case,
a postdeath subscription of a will is not prohibited by section 6110.” (Id. at p.
914.)
A number of states have construed statutes similar to section 6110 as
prohibiting postdeath attestation. In re Estate of Flicker (Neb. 1983) 339 N.W.2d
914, construed Nebraska’s statute “to require that the witnesses to a will must sign
it before the testator’s death. A line must be drawn, and we believe that it is
unreasonable to follow the alternative of permitting witnesses to sign a will at any
time after the testator’s death and prior to the 3-year statute of limitations for
probate or testacy proceedings . . . . As a practical matter, we can think of no good
reason for a delay in signing by witnesses until after the testator’s death.
Permitting witnesses to sign a will after the death of a testator would erode the
efficacy of the witnessing requirement as a safeguard against fraud or mistake.
We must bear in mind that we are dealing with an instrument allegedly signed or
acknowledged by a man who is now dead. He is not present to confirm or reject
it. Requiring completion of formalities of execution prior to death is likely to
8
minimize miscarriages of justice.” (Id. at p. 915.) Other states have made similar
observations. “[I]f the will speaks as of the date of the testator’s death, it follows
that the document should be complete at that time. Consequently, we adopt the
bright line rule that witnesses’ signatures should be affixed to the document at
least by the time it becomes operative, the death of the testator.” (Matter of Estate
of Royal (Colo. 1992) 826 P.2d 1236, 1238-1239; see Matter of Estate of Mikeska
(Mich.Ct.App. 1985) 362 N.W.2d 906, 910-911; Rogers v. Rogers (Or. Ct. App.
1984) 691 P.2d 114, 115.)8
We find Crook, supra, 95 Cal.App.4th 1194, and the cases from other states
following a similar rule, to be persuasive. Such an interpretation is consistent with
the critical principle that a will is operative following the death of the testator.
(Cook, supra, 17 Cal.2d at p. 646; Lopes, supra, 152 Cal.App.3d at p. 305.) It is
not effective a week or a year later, or whenever purported witnesses manage to
comply with the statutory requirement. While the dissent superficially
acknowledges this rule, it nonetheless maintains that postdeath attestation is
permitted. (Dis. opn., post, at pp. 2, 6, 8, 9.) The dissent does not, however, cite
to any statutory provision that requires probate or intestate procedures be delayed
because a purported will might be posthumously attested. Nor does the dissent
provide any other example in which a will was not valid at the time of death, but
became so later.
Moreover, nothing in the language or legislative history of section 6110
indicates that by modifying the execution requirements, the Legislature intended

8 Other states have concluded witnesses may sign a will after the testator’s
death so long as the signing occurs within a reasonable time after witnessing the
testator’s signature or acknowledgement of the signature or of the will. (Matter of
Estate of Peters
(N.J. 1987) 526 A.2d 1005, 1013; see In re Estate of Jung
(Ariz.Ct.App. 2005) 109 P.3d 97, 102.)
9


to permit postdeath attestation. The Senate Committee on the Judiciary and the
Commission specifically enumerated the changes section 6110 effected in the
statutory scheme, and did not note that postdeath attestation was now permitted.
(Sen. Rep., 3 Sen. J., supra, p. 4872; 16 Cal. Law Revision Com. Rep., supra, p.
2393; see ante, p. 5.) Such a dramatic change would logically have merited
mention.
Indeed, the elimination of the requirement that a will be attested by two
witnesses in the presence of the testator is discussed in the legislative history along
with the elimination of other clearly inconsequential requirements. The
Commission observed that these “ritual requirements” “often invalidate wills on
technical grounds where there is no reasonable doubt that the testator intended the
instrument as a will and there is no suspicion of fraud.” (16 Cal. Law Revision
Com. Rep., supra, pp. 2314, 2320.) Thus, section 6110 eliminated “the
requirements (1) that the testator’s signature be ‘at the end’ of the will, (2) that the
testator ‘declare’ to the witnesses that the instrument is his or her will, (3) that the
witnesses’ signatures be ‘at the end’ of the will, (4) that the testator ‘request’ the
witnesses to sign the will, and (5) that the witnesses sign the will in the testator’s
presence.” (Sen. Rep., 3 Sen. J., supra, p. 4872; 16 Cal. Law Revision Com. Rep.,
supra, at p. 2393.) The requirement that the testator be alive when the witnesses
sign cannot reasonably be termed a mere “ritual.” Rather, the specific reference to
these items makes it all the more unlikely that by eliminating the technical
requirement that the witnesses sign in the testator’s presence, the Legislature
intended to make a vast and sweeping change as to when a will is effective.
The dissent relies on the fact that the Uniform Probate Code, through a
comment regarding the actual statutory language, allows postdeath attestation.
(Dis. opn., post, at pp. 7, 9.) However, we are governed by section 6110(c), not
the Uniform Probate Code. As noted above, the 1990 comment to Uniform
10
Probate Code section 2-502 was not before the Legislature in 1983 when it
enacted section 6110(c). Nor did the Legislature adopt language consistent with
the 1990 comment either when section 6110 was repealed and reenacted without
change in 1990, or when it was amended in 1996. Nor has the Legislature adopted
a “harmless error” provision similar to Uniform Probate Code section 2-503,
added in 1990, which provides, “Although a document or writing added upon a
document was not executed in compliance with Section 2-502, the document or
writing is treated as if it had been executed in compliance with that section if the
proponent of the document or writing establishes by clear and convincing
evidence that the decedent intended the document or writing to constitute (i) the
decedent’s will . . . .” In sum, there is no evidence our Legislature is persuaded by
or has adopted the Uniform Probate Code’s approach.9
In addition, while the Legislature did not expressly address the question of
whether section 6110(c) permitted postdeath attestation, comments in the

9 This point distinguishes In re Estate of Jung, supra, 109 P.3d 97, on
which the dissent relies. (Dis. opn., post, at pp. 7-8.) Prior to Jung, the same
Arizona Court of Appeals, interpreting a statute with language similar to that of
section 6110(c), held that postdeath attestation was not permitted. (Gonzalez v.
Satrustegui
(Ariz.Ct.App. 1993) 870 P.2d 1188, 1193-1195.) Subsequent to
Gonzalez, “the Arizona Legislature repealed the then-existing version of the
statute and enacted the current version,” which was based on Uniform Probate
Code section 2-502. (Jung, at p. 100.) At that time, Uniform Probate Code
section 2-502 contained the 1990 comment stating that postdeath attestation was
permitted. Jung observed that “[m]inutes of a judiciary committee meeting
considering the proposed revision reflect that the change . . . was recommended by
a committee of the State Bar of Arizona ‘in order to conform Arizona law with
revisions made to the Uniform Probate Code in 1990.’ ” (Jung, at p. 101.) “In
light of the legislative history and the comment to [Uniform Probate Code]
section 2-502, we hold that the Legislature has superseded Gonzalez.” (Ibid.)
Hence the Arizona Legislature expressly referenced the 1990 Uniform Probate
Code in amending the relevant statute. The California Legislature has not done so
with section 6110(c).
11


legislative history regarding a related area are instructive. As originally
introduced, section 6110(c) required “at least two persons” be “present at the same
time” to witness “either the signing of the will or the testator’s acknowledgement
of the signature or of the will.” (Assem. Bill No. 25 (1983-1984 Reg. Sess.) as
introduced Dec. 6, 1982.) The section was amended on February 1, 1983, to
delete the requirement that the witnesses be “present at the same time.” (Assem.
Bill No. 25, as amended Feb. 1, 1983.) On April 5, 1983, the Executive
Committee of the Estate Planning, Trust and Probate Law Section of the State Bar
of California wrote to the Assembly Committee on the Judiciary. As relevant
here, the executive committee opposed validation of “a will which is witnessed by
two witnesses who are not present at the same time . . . . We believe there is value
in having two witnesses together at the same time as an additional protection to the
testator. We are concerned that under the new legislation, a testator will have one
person witness but may never get around to obtaining a second witness. This will
inevitably result in an increasing number of wills which are invalid on their face.”
(State Bar, Exec. Com. of Estate Planning, Trust and Probate Law Section, letter
to Assem. Com. on Judiciary Apr. 5, 1983, p. 6.) This concern was quoted in an
Assembly Committee on the Judiciary analysis of Assembly Bill No. 25. (Assem.
Com. on Judiciary, analysis of Assem. Bill No. 25 (1983-1984 Reg. Sess.) as
amended Apr. 11, 1983, p. 5.)
On April 11, 1983, the California Law Revision Commission wrote to the
Assembly Committee on the Judiciary, apparently in response to the executive
committee’s concerns. (Cal. Law Revision Com., letter to Assem. Com. on
Judiciary re Assem. Bill Nos. 25 and 68 (1983-1984 Reg. Sess.), Apr. 11, 1983,
pp. 1-2.) As relevant here, the letter stated that the “proposed law eliminates the
requirement that both witnesses be present ‘at the same time.’ Thus, for example,
a will is not invalidated merely because one witness temporarily leaves the room
12
during the execution ceremony if the testator acknowledges his or her signature to
the witness when that witness reenters the room.” (Id., p. 2.) The Commission
observed that deleting this requirement “would adopt the Uniform Probate Code
rule and the rule that is in effect in the large majority of states.” (Id., pp. 2-3.)
The “justification of the change recommended by the Commission is given in
more detail” in an attached December 17, 1982 letter from Professor Jesse
Dukeminier. (Id., p. 3.) In that letter, Professor Dukeminier responded to the
executive committee’s concern “that abolishing the simultaneous presence
requirement might result in wills failing because testator, knowing that the
witnesses do not have to be present at the same time, may delay securing a second
witness so long that he dies without a second witness to his will. . . . I think it
would be an extremely rare case where a person would get one witness on a will
and then wait for a month or a year to secure a second. . . . [I]t is my belief . . . that
many more wills will fail because of the simultaneous presence requirement than
will fail because the testator procrastinates in securing a second witness and dies
in the meantime. . . . I see no reason to penalize [testators] out of a fear that
someone will too long delay securing the second witness. If the will of the
procrastinator is invalid, I shall shed few tears.” (Professor Jesse Dukeminier Dec.
17, 1982, letter to Mr. John DeMoully, executive secretary, Cal. Law. Revision
Com., pp. 2-3.)10

10 Typically we do not ascribe legislative intent to letters written to the
Legislature. The letters here, however, came from the Commission, which had
been asked to propose changes to the Probate Code, and which drafted the
provisions on which Assembly Bill No. 25 was based, and a letter that the
Commission expressly stated set forth its own reasons for recommending deletion
of the simultaneous presence requirement.
13


On April 20, 1983, Assembly Bill No. 25 was amended to place back into
section 6110(c) the simultaneous presence requirement. (Assem. Bill No. 25
(1983-1984 Reg. Sess.) as amended Apr. 20, 1983, p. 28.) Thus, it appears that
the Legislature was cognizant of concerns that a testator might delay too long, i.e.
until his death, to procure a second witness, and that his will would thereby be
invalid. There is no hint in any of this discussion that a witness could render a will
valid by signing it after the testator’s death.
Our conclusion regarding the legislative intent is consistent with sound
public policy. As the Commission observed, “The formalities for execution of an
attested will are to ensure that the testator intended the instrument to be a will, to
minimize the opportunity for fraudulent alteration of the will or substitution of
another instrument for it, and to provide witnesses who can testify that the testator
appeared to be of sound mind and free from duress at the time the testator signed
or acknowledged the will.” (16 Cal. Law Revision Com. Rep., supra, p. 2320,
italics added, fn. omitted.) The opportunity for fraud is obviously greater once the
testator is dead. The lack of any requirement that the testator be living when the
witness signs the will would deprive the testator of the chance to dispute the
attestation and the consequent validity of the will. Only if he is still alive can the
testator say, “This will is not mine,” or “I did not ask this person to witness my
will.” Interpreting section 6110(c) to allow postdeath attestation would, for
example, permit a witness to validate a will that the deceased testator executed,
but deliberately did not have signed because of changed intent.
A rule allowing postdeath attestation would essentially substitute oral
testimony for the Legislature’s requirement of a written signature. It would
encourage will contests and put witnesses, not the testator, in control of the
disposition of an estate. As one court observed decades ago, if witnesses could
sign after the testator’s death, “ ‘[t]he final disposition of the estate would thereby
14
be made to depend, not solely upon the intention of the testator, but upon the will
or caprice of one who had been requested to perform the very simple act of
becoming a witness. The legislature never intended to give to subscribing
witnesses such power. A will must be a valid, perfect instrument at the time of the
death of the testator. It takes effect at the instant the testator dies. If invalid then,
life cannot be given to it by the act of a third party.’ ” (In re Cannock’s Will
(N.Y.Surr.Ct. 1948) 81 N.Y.S.2d 42, 42-43.)
The dissent expresses the concern that by concluding postdeath attestation is
not permitted by the statute, we are “supplying language the Legislature omitted.”
(Dis. opn., post, at p. 10.) Similarly, the dissent states, “The majority apparently
concludes that the Legislature must have made a mistake in removing the
requirement that a witness sign a will in the presence of the testator without
inserting a requirement that the witness sign the will before the testator’s death.”
(Ibid.)
In fact, the opposite is true. Section 6110(c) requires that the will “be
witnessed by being signed by at least two persons.” If we were to conclude that
postdeath attestation is available, we would be adding the language “before or
after the testator’s death” to the current statutory requirement. We agree that it is
not for us to draft statutes in the Legislature’s stead. Rather, the task here is to
discern what the Legislature meant by the language it has chosen. The Legislature
may at some point conclude that postdeath attestation offers sufficient safeguards
against fraud to allow it. That is its prerogative. However, in the absence of any
evidence the Legislature has added this option to the Probate Code, it is not up to
this court to do so. Given the history and context of section 6110(c), the most
reasonable interpretation of the statutory language is that postdeath attestation is
not an act the Legislature has authorized.
15
The understandable desire to effect apparent testator intent led to the outcome
in Eugene. Subsequent cases, however, including this one, highlight Eugene’s
potential pitfalls. While one purpose of section 6110(c)’s requirements is to
prevent fraud, the courts are not empowered to rewrite the code simply because
evidence of fraud may be absent. Such an approach would require the trial courts
to examine each case on its own facts before admitting a will to probate. This ad
hoc procedure, with its attendant delay and potential for inconsistency, is avoided
by our holding that section 6110(c) requires attestation prior to the testator’s death.
We disapprove Estate of Eugene (2002) 104 Cal.App.4th 907, to the extent it
interprets section 6110(c) as permitting postdeath attestation.
DISPOSITION
The Court of Appeal’s judgment is reversed. The matter is remanded to that
court with instructions to direct the trial court to reinstate its previous order
denying probate of Saueressig’s will.
CORRIGAN, J.
WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.

16



C O P Y

ESTATE OF TIMOTHY KIRK SAUERESSIG

S129110

DISSENTING OPINION BY MORENO, J.
Shortly before his death, Timothy Saueressig prepared his will, without the
help of a lawyer, leaving his property to three friends. The majority holds that
Saueressig’s will is invalid, and his property cannot go to the friends he named as
his beneficiaries, because he failed to comply with a requirement that appears
nowhere in the applicable statutes. I dissent.
The facts of this case are undisputed. On December 26, 2000, Timothy
Saueressig typed his will, which left his property to his friends, Scott Smith, Harry
Ernst, and Cliff Thomas, and named Smith as his executor. Saueressig had no
brothers or sisters and his parents were deceased. He never married and had no
children. To his beneficiaries’ knowledge, he had “no known next of kin.”11
Saueressig took the will to his friends Joongok Shin and her husband
Theodore Boody at the Mail Boxes Etc. franchise that Shin owned to have Shin
notarize his will. Saueressig explained to them that he had drafted his will to
eliminate one of the beneficiaries under a previous will. Boody watched as
Saueressig signed the will and Shin notarized his signature.
Saueressig delivered a copy of the will to Smith, who kept it until
Saueressig’s death on August 30, 2002. Smith “took care of [Saueressig]’s affairs

11
The will repeatedly directs the beneficiaries to care for Saueressig’s four
cats, stating: “They are my family!!”
17



after his death,” paying for his funeral expenses and making the mortgage,
insurance, and maintenance payments for his residence. Smith petitioned to
probate the will, but the public administrator objected. On December 16, 2002,
the court denied the petition, finding the will did not qualify as a holographic will
because its material terms were typed and it did not qualify as a formal will
because it was signed by only one witness, the notary Shin, rather than two
witnesses as required by Probate Code section 6110, subdivision (c).12
One week after the superior court denied the petition to probate the will, the
Court of Appeal published its decision in Estate of Eugene (2002) 104
Cal.App.4th 907, 912, holding that a witness will may sign the will after the death
of the testator. In light of this new authority, Smith renewed his petition to
probate the will, providing the declaration of Boody that both he and Shin had
watched Saueressig sign the will and he was prepared to sign the will as the
necessary second witness. Shirley Goff opposed the motion, alleging that
Saueressig had “intestate heirs.”13 The public administrator joined the opposition
and the superior court denied the motion. But the Court of Appeal reversed,
stating: “We find nothing in the language of section 6110 . . . to preclude an
otherwise qualified witness from signing a will after the death of the testator.”
I agree with the Court of Appeal.

12
Probate Code section 6110, subdivision (c) states: “The will shall be
witnessed by being signed by at least two persons each of whom (1) being present
at the same time, witnessed either the signing of the will or the testator’s
acknowledgment of the signature or of the will and (2) understand that the
instrument they sign is the testator’s will.”
Further statutory references are to the Probate Code.
13
No supporting declaration was included and the record does not reflect in
what manner, if any, Goff is related to the deceased.
18



If Boody is permitted to sign the will as the second witness, which he is
prepared to do, the requirements of section 6110, subdivision (c) will be satisfied.
Section 6110, subdivision (c) requires that “[t]he will shall be witnessed by being
signed by at least two persons each of whom . . . being present at the same time,
witnessed either the signing of the will or the testator’s acknowledgment of the
signature or of the will . . . .” The statute thus requires that the will be signed by
two persons who were present at the same time to witness the signing or
acknowledgment of the will, but the statute places no restrictions on when the
witnesses must sign the will. Boody and Shin were “present at the same time” and
“witnessed . . . the signing of the will.” Nothing in the statute requires that Boody
must have signed the will before Saueressig died.
In interpreting a statute, we are guided first and foremost by its language.
“ ‘We begin by examining the statutory language, giving the words their usual and
ordinary meaning.’ [Citation.]” (State v. Altus Finance (2005) 36 Cal.4th 1284,
1295.) “If the plain, commonsense meaning of a statute’s words is unambiguous,
the plain meaning controls.” (Fitch v. Select Products, Co. (2005) 36 Cal.4th 812,
818.) Nothing in the language of section 6110, subdivision (c) states or even
suggests that there is a limit upon when the witnesses may sign the will.
The majority does not dispute that the statute, by its terms, does not limit
when a witness may sign a will, stating: “Plainly, section 6110(c) contains no
express temporal limitation on when the witnesses must sign the will in order for
the document to be valid.” (Maj. opn., ante, at p. 6, fn. omitted.) But the majority
concludes that this lack of any express limitation on when a witness may sign the
will renders the statute “ambiguous as to whether it permits postdeath attestation.”
(Ibid.) I fail to see how the circumstance that the statute does not limit when a
witness may sign a will renders the statute ambiguous with respect to postdeath
attestation.
19

But even if we assume for purposes of argument that section 6110,
subdivision (c) is ambiguous,14 the majority’s review of the legislative history of
the statute does not support its conclusion that the Legislature meant to require
witnesses to sign a will before the testator dies.
California law never has expressly required that witnesses sign a will while
the testator is alive. The prior version of the applicable statute, however, required
the witnesses to sign the will in the testator’s presence. (Former § 50, as amended
by Stats. 1982, ch. 187, § 1, p. 569.) Former section 50 stated: “There must be at
least two attesting witnesses, each of whom must sign the instrument as a witness,
at the end of the will, at the testator’s request and in his presence.” (Ibid.) The
former requirement that witnesses sign the will in the testator’s presence meant, as
a practical matter, that they had to sign the will while the testator was alive.
In 1983, the Legislature repealed former section 50 as part of a wholesale
revision of the statutes governing the execution of wills and replaced it with
section 6110, which became effective in 1985. (Stats. 1983, ch. 842, § 55, pp.
3049-3092.) The chairperson of the California Law Revision Commission
described this statutory revision as a “comprehensive statute governing wills and
intestate succession” that was designed to “replace the comparable portion of the
California Probate Code” and was “drawn in part from the Uniform Probate
Code.” (16 Cal. Law Revision Com. Rep. (1982) pp. 2305, 1420.) The

14
Only if the language of the statute is ambiguous, do we consult Legislative
history to decide which of two reasonable interpretations of the statutory language
the Legislature intended. “ ‘If the language contains no ambiguity, we presume
the Legislature meant what it said, and the plain meaning of the statute governs.’
[Citation.] If, however, the statutory language is susceptible of more than one
reasonable construction, we can look to legislative history [citation] and to rules or
maxims of construction.” (MW Erectors, Inc. v. Niederhauser Ornamental and
Metal Works Co.
(2005) 36 Cal.4th 412, 426.)
20



chairperson observed that the revision “makes some significant changes in existing
California law. These changes are designed primarily to simplify the
administration of an intestate estate and to carry out more effectively the intent of
the decedent who dies leaving a will.” (Ibid.)15 The Law Revision Commission
subsequently described section 6110 as follows: “Section 6110 relaxed the
formalities required under former Section 50 by eliminating the requirements (1)
that the testator’s signature be ‘at the end’ of the will, (2) that the testator ‘declare’
to the witnesses that the instrument is his or her will, (3) that the witnesses’
signatures be ‘at the end’ of the will, (4) that the testator ‘request’ the witnesses to
sign the will, and (5) that the witnesses sign the will in the testator’s presence.”
(20 Cal. Law Revision Com. Rep. (1990) pp. 1001, 1420.)
The Legislature thus removed from the statute the requirement that the
witnesses sign the will in the testator’s presence, which was the only provision
that, as a practical matter, had required that the testator be alive when the
witnesses sign the will. As a result, section 6110 contains no provision that states

15
The introduction to the recommendation of the California Law Revision
Commission states: “The California law of wills and intestate succession has had
no thorough substantive revision for over a century. Changes have been
piecemeal. Much of the Probate Code has not changed since it was copied from
the Texas Code in 1850 or modified by the Field Code in 1872. It remains a
nineteenth century code in its premises, its phraseology, and its excessive detail.
[¶] Existing California law contains technical requirements that often invalidate a
will, even where there is no reasonable doubt that the testator intended the
instrument as his or her will and there is no suspicion of fraud. Other provisions
of existing law set forth mechanical rules that produce results that are inconsistent
with the testator’s intent. [¶] . . . [¶] The Commission recommends enactment of
a new comprehensive statute, drawn in part from the Uniform Probate Code, to
govern will, intestate succession, and related matters. The proposed law will make
probate more efficient and expeditious. It will provide rules that are more likely to
carry out the intent of the testator . . . .” (16 Cal. Law Revision Com. Rep., supra,
pp. 2318-2319, fns. omitted.)
21



or even suggests, in any manner, that a witness must sign the will while the
testator is alive.
As noted above, the majority agrees that “section 6110(c) contains no
express temporal limitation on when the witnesses must sign the will” (maj. opn.,
ante, at p. 6), but concludes nevertheless that this court should interpret the statute
to include an unstated requirement that the witnesses sign the will while the
testator is alive. The majority proffers two reasons for reading such a requirement
into the language of the statute. I find neither reason convincing.
The majority concludes that “nothing in the language or legislative history
of section 6110 indicates that by modifying the execution requirements, the
Legislature intended to permit postdeath attestation.” (Maj. opn., ante, at p. 9.) I
disagree. The Legislature’s repeal of the only provision in the former statute that
required, as a practical matter, that the witnesses sign the will while the testator
was alive is a strong indication that the Legislature intended to permit a witness
who was present when the testator signed the will to sign the will at any time, even
after the testator has died. This conclusion is supported by the fact that section
6110, subdivision (c) was patterned in large part upon the Uniform Probate Code,
which since has been interpreted to permit a witness to sign a will after the death
of the testator.
Section 6110 was proposed by the California Law Revision Commission as
part of a “new comprehensive statute governing wills and intestate succession”
that was “drawn in part from the Uniform Probate Code.” (16 Cal. Law Revision
Com. Rep., supra, p. 2305.) At that time, the Uniform Probate Code imposed no
restriction on when the witnesses must sign the will. In 1983, the Uniform Probate
Code required that a nonholographic will “shall be signed by at least 2 persons
each of whom witnessed either the signing or the testator’s acknowledgment of the
signature or of the will.” (8 West’s U. Laws Ann. (1998) U. Prob. Code (1969)
22

§ 2-502, p. 351.) The comment accompanying this provisions notes that “[t]he
formalities for execution of a witnessed will have been reduced to a minimum. . . .
The intent is to validate wills which meet the minimal formalities of the statute.”
(Id., com. to § 2-502, at p. 351.)
The Uniform Probate Code upon which section 6110 was based in part did
not restrict when a witness could sign a will. It later was amended to include a
temporal restriction on when a witness could sign a will, but it was not the
restriction the majority assumes is implicit in section 6110 that the witness must
sign the will while the testator is alive.
In 1990, the Uniform Probate Code was amended to provide that a witness
to a will must sign the will “within a reasonable time” after witnessing the signing
or acknowledgement of the will. (8 West’s U. Laws Ann. (1998) U. Prob. Code
(1990) § 2-502, subd. (a)(3), p. 144.) The comment to the amended provision
states: “The witnesses must . . . sign within a reasonable time after having
witnessed the signing or acknowledgment. There is, however, no requirement that
the witnesses sign before the testator’s death; in a given case, the reasonable-time
requirement could be satisfied even if the witnesses sign after the testator’s death.”
(Id., com. to § 2-502, at p. 145.)
The Arizona Court of Appeals relied upon the above quoted comment in
Estate of Jung (Ct.App. 2005) 210 Ariz. 202, to hold that an Arizona statute that
codified this provision of the Uniform Probate Code did not require that a witness
sign the will prior to the death of the testator, noting that the statute required only
that the witness sign the will “within a reasonable time” and adding: “The
language of the statute does not limit that reasonable time to a time before the
decedent’s death and the comment to the [Uniform Probate Code] provision on
which it is based expressly notes that a witness signing after the testator’s death is
not prohibited.” (Id., at p. 206.)
23

The majority’s conclusion that this court should read into section 6110,
subdivision (c) an unstated requirement that the witnesses must sign the will while
the testator is alive also is based upon the fact that “a will is operative following
the death of the testator.” (Maj. opn., ante, at p. 9.)16 This argument has a
stronger basis and, in fact, the high courts of two of our sister states relied upon
this basis in concluding that statutory language similar to section 6110 does not
permit a witness to sign a will after the death of the testator. (Estate of Royal
(Colo. 1992) 826 P.2d 1236 [“Therefore, if the will speaks as of the date of the
testator’s death, it follows that the document should be complete at that time.
Consequently, we adopt the bright line rule that witnesses’ signatures should be
affixed to the document at least by the time it becomes operative, the death of the
testator.”]; Estate of Rogers (1984) 71 Or.App. 133, 136 [“A will takes effect at
the time of the testator’s death. [Citation.] . . . If the requirements of execution
have not been met at the time of the death of the testator, then the will is not valid
and the purported testator has died intestate.”].) But another of our sister states
reached the opposite conclusion based upon reasoning that I find more convincing.
In Estate of Peters (1987) 107 N.J. 263, the testator signed his will in the
presence of several witnesses, including two persons who had come for the
express purpose of witnessing the signing of the will, but the witnesses
inadvertently failed to sign the will. The testator died 15 months later. Eighteen
months after the testator died, the trial court ruled that the witnesses who were

16
In support, the majority cites our decision in Cook v. Cook (1941) 17 Cal.2d
639, 646, which states the rather unremarkable proposition that “A will does not
become operative until death; prior to death it is revocable at the whim of the
testator . . . .” The majority also relies upon the statement in Estate of Lopes
(1984) 152 Cal.App.3d 302, 305, that a will “become[s] effective only following
the death of such person.”
24



present when the testator signed the will could sign the will at that time, because
the governing statute, like section 6110, did not restrict when a witness could sign
the will. The Supreme Court of New Jersey disagreed, ruling that a witness must
sign the will “within a reasonable period of time from the execution of the will,”
and concluding that, under the circumstance, 18 months was not a reasonable time.
(Estate of Peters, supra, 107 N.J. at pp. 275, 278.) In so holding, however, the
court expressly declined to adopt a “bright-line rule” that a witness could not sign
a will after the death of the testator, observing: “There may indeed be cases in
which the affixation of witnesses’ signatures after the testator’s death would be
reasonable, particularly if the witnesses were somehow precluded from signing
before the testator died.” (Id. at p. 278.)
I agree with the Supreme Court of New Jersey that there is no bright-line
rule prohibiting a witness from signing a will after the death of the testator. It is
within the power of the Legislature to adopt such a rule, but it has not done so.
And there is nothing inherent in the common law governing wills that requires
such a rule, as is demonstrated by the fact that the Uniform Probate Code permits a
witness to sign a will after the death of the testator.
The majority understandably is concerned that “[t]he opportunity for fraud
is obviously greater once the testator is dead” (maj. opn., ante, at p. 14), but the
same is true when the testator falls into a coma or becomes mentally incompetent.
Thus, a requirement that a witness must sign the will within a reasonable time
after witnessing the testator’s signature, as required by the Uniform Probate Code,
would be a far more effective deterrent against fraud than a bright-line rule
prohibiting a witness from signing a will even a few minutes after the testator has
died but not years after the testator has become mentally incompetent. But the
wisdom of such provisions is for the Legislature to debate, not this court. We
25

must apply the law as the Legislature has written it, and section 6110, subdivision
(c) does not prohibit a witness from signing a will after the death of the testator.
The majority apparently concludes that the Legislature must have made a
mistake in removing the requirement that a witness sign a will in the presence of
the testator without inserting a requirement that the witness sign the will before the
testator’s death. If this is so, it is a mistake that is beyond the authority of this
court to correct. This court cannot correct a statute by supplying language the
Legislature omitted, except to avoid an anomalous result that is at odds with the
statutory language.17 (State of South Dakota v. Brown (1978) 20 Cal.3d 765, 775
[“It is a fundamental rule of statutory construction that statutes should be
construed to avoid anomalies.”].) That is not the case here. The result that would
follow if we applied the statute according to its terms is hardly anomalous.
Rather, this result would be consistent with the Uniform Probate Code and would
be fair in the circumstances of this case by giving effect to the clearly expressed
wishes of the decedent.
MORENO, J.
I CONCUR: WERDEGAR, J.

17
The majority counters by asserting that applying the statute as I propose
would effectively add to the statutory language requiring that the will “be
witnessed by being signed by at least two persons” the phrase “before or after the
testator’s death.” (Maj. opn., ante, at p. 15.) This is incorrect. The phrase “before
or after the testator’s death” neither limits nor expands the meaning of the
statutory language and thus does not alter its meaning. The statutory language, as
written, requires only that the will be signed by two witnesses and places no
limitation on when those witnesses may sign the will. Accordingly, the statutory
language, without embellishment, permits the witnesses to sign the will at any
time.
26



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Estate of Saueressig
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 122 Cal.App.4th 1086
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S129110
Date Filed: June 22, 2006
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: H. Ronald Hauptman, Temporary Judge*

__________________________________________________________________________________

Attorneys for Appellant:

Paul Buchberg for Petitioner and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Hinojosa & Wallet, Lynard C. Hinojosa, Trudi Sabel and Andrew M. Wallet for Objector and Respondent.


*Pursuant to California Constitution, article VI, section 21.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Paul Buchberg
12400 Wilshire Boulevard, Suite 1500
Los Angeles, CA 90025
(310) 571-3005

Lynard C. Hinojosa
Hinojosa & Wallet
2215 Colby Avenue
Los Angeles, CA 90064-1504
(310) 473-7000


Opinion Information
Date:Docket Number:
Thu, 06/22/2006S129110

Parties
1Goff, Shirley K. (Respondent)
Represented by Lynard C. Hinojosa
Hinojosa & Wallet
2215 Colby Avenue
Los Angeles, CA

2Goff, Shirley K. (Respondent)
Represented by Trudi Sabel Schindler
Hinojosa & Wallet
2215 Colby Avenue
Los Angeles, CA

3Smith, Scott (Petitioner and Appellant)
Represented by Paul D. Buchberg
Attorney at Law
12400 Wilshire Boulevard, Suite 1500
Los Angeles, CA

4Saueressig, Timothy Kirk (Overview party)

Disposition
Jun 22 2006Opinion: Reversed

Dockets
Nov 9 2004Petition for review filed
  counsel for respondent Shirley K. Goff [40K]
Nov 9 2004Record requested
 
Nov 19 20042nd record request
 
Nov 22 2004Received Court of Appeal record
 
Nov 29 2004Answer to petition for review filed
  appellant Scott Smith
Dec 15 2004Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ.
Dec 16 2004Note:
  Records sent to Cal-Coord. Off.; RT=1, 2, w/appendix, 3, 4, 6, 7, manila jacket.
Jan 3 2005Certification of interested entities or persons filed
  counsel for (S. Goff)
Jan 3 2005Certification of interested entities or persons filed
  appellant Scott Smith
Jan 13 2005Request for extension of time filed
  opening brief/merits to 1-31-05>>respondent Shirley K. Goff
Jan 18 2005Extension of time granted
  Respondent's time to serve and file the opening brief on the merits is extended to and including January 31, 2005. No further extensions will be granted.
Feb 1 2005Opening brief on the merits filed
  respondent Shirley K. Goff [rule 40.1]
Mar 4 2005Answer brief on the merits filed
  appellant Scott Smith [rule 40.1]
Mar 25 2005Reply brief filed (case fully briefed)
  respondent Shirley K. Goff [rule 40.1]
Mar 8 2006Case ordered on calendar
  Wednesday, April 5, 2006, at 2:00 p.m., in Los Angeles
Apr 5 2006Cause argued and submitted
 
Jun 22 2006Opinion filed: Judgment reversed
  and Remanded OPINION BY: Corrigan, J. --- joined by: George, C.J., Kennard, Baxter, Chin, JJ. DISSENTIING OPINION BY: Moreno, J. --- joined by: Werdegar, J.
Jul 10 2006Rehearing petition filed
  Appellant Scott Smith [rule 40.1] Attorney Paul Buchberg, retained
Jul 11 2006Received:
  Errata to Petition for Rehearing Attorney Paul Buchberg, retained
Jul 12 2006Time extended to consider modification or rehearing
  to and including September 20, 2006, or the date upon which review is either granted or denied, whichever occurs first.
Jul 19 2006Answer to rehearing petition filed
  Shirley Goff, respondent Trudi Sabel, counsel (timely CRC 40.1b)
Jul 26 2006Rehearing denied
  Werdegar and Moreno, JJ., are of the opinion the petition should be granted.
Jul 26 2006Remittitur issued (civil case)
 
Aug 3 2006Received:
  from CA 2/4 receipt for remittitur.
Aug 3 2006Note:
  records sent to CA 2/4

Briefs
Feb 1 2005Opening brief on the merits filed
 
Mar 4 2005Answer brief on the merits filed
 
Mar 25 2005Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website